Alaska: Former Employee May Proceed Against Physician and Employer’s Attorney Involved in Attempt to Terminate Workers’ Compensation Benefits

In a split decision, the Supreme Court of Alaska held that where a plaintiff (a former employee) and his spouse sued the former employer, its workers’ compensation insurer, a private investigator, the employer’s attorney, and a doctor who performed an employer’s medical evaluation (EME), alleging various claims including abuse of process, defamation, liability under the Unfair Trade Practices Act, and negligent infliction of emotional distress (NIED), all in connection with the employer’s challenge to the former employee’s continuing eligibility for workers’ compensation, it was appropriate for the trial court to grant summary judgment or dismiss the abuse of process claim since plaintiff alleged no ulterior purpose. The Unfair Trade Practices Act claim was also appropriately dismissed because Alas. Stat. § 45.50.481(a)(3) exempted it. Plaintiff’s NIED claim against the physician, the private investigator, and the employer’s attorney survived, however. Alas. Stat. § 23.30.095(k) did not immunize the physician, whom plaintiff alleged injured him. Similarly, since plaintiff alleged physical injury caused by the investigator, issues of fact precluded summary judgment. The action against the employee’s attorney was not barred, since there were issues of fact as to the NIED claim that should be heard. Specifically, the employer’s attorney did not enjoy immunity under the exclusive remedy provisions of the workers’ compensation law. Plaintiffs had alleged that the private investigator prepared edited video surveillance that misrepresented plaintiff’s physical condition and that the EME physician relied upon the video to opine that plaintiff’s disability was substantially less than total. It should be noted that, in spite of the video, the Workers’ Compensation Board refused to terminate benefits when the matter came before it.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Cornelison v. TIG Ins., 2016 Alas. LEXIS 99 (Aug. 12, 2016)

See generally Larson’s Workers’ Compensation Law, § 100.01.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law